: Looking behind jury verdicts

Looking behind jury verdicts

Kellie Toole
South Australia

NH, Jakaj, Zefi and Stakaj v the South Australian Director of Public Prosecutions

In October 2014, four men faced joint trial by jury for murder for a stabbing that occurred during a confrontation in a night-club. They were each found guilty of manslaughter.

The trial judge directed the jury that they could find each defendant guilty of murder, guilty of manslaughter or not guilty of either murder or manslaughter. She also directed that a verdict of guilty of murder had to be unanimous, but that any other verdict, including not guilty of murder, could be by a majority of 10 or more.

After the jury had finished its deliberations, the foreperson, in answer to questions from the judge’s associate, reported that the jury found each of the appellants not guilty of murder but guilty of manslaughter.

Later on the same day, the foreperson reported to a court officer that he had mistakenly told the court that at least 10 members of the jury had agreed on verdicts of not guilty of murder. This was confirmed by statements taken from all members of the jury.

However, without dissent by the Director of Public Prosecutions (‘DPP’), the verdicts and judgments were entered as acquitted of murder and convicted of manslaughter and the four men were sentenced to terms of imprisonment.

In 2015, the DPP successfully applied to the Full Court of the Supreme Court for orders to quash the verdicts of not guilty of murder and guilty of manslaughter, and for retrials on the charge of murder.

The majority of the Full Court held that s 57(3) of the Juries Act 1927 (SA) required the jury to reach, unanimously or by majority, a verdict that the accused was not guilty of murder before it could reach a verdict on manslaughter. It decided that the foreperson’s misstatement, and the acquiescence of the rest of the jury to that misstatement, was a material irregularity that rendered the verdicts unlawful, and enlivened the court’s inherent jurisdiction to prevent abuse of process.

It had determined that it had ‘power to look behind the verdicts delivered by the foreperson’.

The defendants successfully appealed. The High Court found that a jury, acting collectively, can correct a verdict before that jury is discharged. However, a long-standing presumption exists that a jury has assented to a verdict that is delivered by the foreperson in open court, within their sight and hearing, and which they do not correct or from which they do not dissent.

The concept of abuse of process is broad and open-ended, but cannot cover innocent error by a jury foreperson in delivering a verdict, nor acquiescence by the rest of the jury to the error. The verdicts were translated by the trial judge into perfected judgments of acquittal and conviction beyond the power of the Court to amend or set aside. The orders to quash the appellants’ acquittals of murder and convictions of manslaughter should not have been made.

KELLIE TOOLE teaches criminal law and evidence law at the Adelaide Law School.

(2016) 41(4) AltLJ 288
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